1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes in the Digest?

KAILASH GAMBHIR, J.
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1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant seeks to set aside the judgment and decree dated 3rd June, 2003 passed by the learned Addl. District Judge, Delhi, whereby the petition filed by the respondent under Section 13(1) (ia) and (ib) of the Hindu Marriage Act was allowed and the marriage between the parties was dissolved on the ground of cruelty under Section 13(1) (ia) of the said Act.

2. Brief facts of the case relevant for deciding the present appeal are that the parties got married on 13.4.90 at Delhi according to Hindu rites and ceremonies. Problems started from the very inception of the marriage from the time of the honeymoon and continued till the time they stayed together. The main allegation of the respondent was that the appellant was under the influence of her parents and would leave the matrimonial home time and again. Disturbed by the cruel conduct of the appellant, the respondent filed a petition for divorce on the ground of cruelty and desertion which vide judgment and decree dated 3. 6.03 was granted on the ground of cruelty. Feeling aggrieved with the same, the appellant has preferred the present appeal.

3. Mr.R.P.Shukla, learned counsel appearing for the appellant contended that the Exhibit PW- 1/1, on which reliance has been placed by the learned trial court, was forcefully got signed from the appellant. The contention of the counsel was that the respondent husband clearly told the appellant that if she wanted to save her marriage then she had to sign the said agreement. Counsel thus submitted that the said agreement was not signed by the appellant out of her own will and volition, but only with a view to save her matrimony. So far the allegation of suicide against the appellant is concerned, counsel contended that the respondent in his own cross-examination has admitted the fact that the appellant could not have inserted her finger in the socket due to the narrow width of the hole. Counsel further submitted that the respondent had also admitted in his cross-examination that there were no power plugs in any portion of the tenanted home where the parties were living together. Counsel also submitted that the respondent also failed to prove the fact that the appellant made any attempt to commit suicide by laying herself in front of the DTC bus. The contention of the counsel was that the appellant being a working woman has been travelling quite often in the DTC buses and, therefore, she was not expected to take such a step. Counsel also submitted that so far the affidavit Exhibit PW- 1/2 is concerned, firstly the same was not proved in accordance with the law and secondly nobody would execute such an affidavit unless the same was to be filed in a court of law. Counsel for the appellant further submitted that the allegation of the respondent that he was not served with dinner when he visited his in laws in the month of May, 1990 is highly improbable. The contention of counsel for the appellant was that it would be inconceivable that once the husband was invited over dinner by the in-laws then he would not be served with dinner while the other family members would take dinner. Counsel thus stated that the learned Trial Court has wrongly placed much reliance on this incident, which in the given circumstances was highly improbable.

4. Counsel for the appellant further submitted that even the incident of 9.5.90 lacks any credibility as the respondent himself has admitted the fact that it was a working day when he extended invitation to his friend Mr. Kaushal Kumar Malik for lunch. The contention of counsel was that the appellant was also working in the same office and, therefore, on a working day it was highly improbable that the husband would send his wife to the residence to prepare lunch for all the three persons. Counsel also submitted that the said witness Mr. Kaushal Kumar Malik was not produced in evidence by the respondent and for withholding the said material witness the learned Trial Court ought to have drawn an adverse inference against the respondent. Counsel also submitted that the respondent in his cross examination admitted the fact that he reached back home at 4.00 P.M. on 9.5.1990 alongwith his friend which cannot be a usual time for taking lunch as the respondent in his cross examination admitted the fact that usually he took lunch at 2 p.m or 2.30 p.m. Counsel also submitted that no quarrel or any incident had taken place on 9.5.1990. PW—2 Smt. Nirmala Tiwari in her evidence clearly admitted the fact that no fight took place between the parties on 9.5.1990. Counsel contended that no evidence was led by the respondent to prove the fact that the appellant had cut short the honeymoon trip at the instance of her parents and even in the absence of any proof the learned trial court has heavily relied upon the said allegation. Counsel submitted that the respondent also did not prove the fact that after cutting short the said honeymoon trip he had joined the office before the leave period expired. Counsel further submitted that the parties would not have stayed at Ambala after their return from honeymoon had there been any curtailment in the honeymoon period at the instance of the appellant. Counsel also submitted that it is not the case of the respondent that the appellant had immediately gone to the house of her parents after returning from honeymoon. Counsel submitted that the respondent failed to prove on record that any complaint was lodged by the appellant with the RBI Women Forum as no evidence was led by the respondent to prove such a fact. Counsel further submitted that a false allegation was leveled by the respondent that he was not being allowed to visit his parents’ house at Ambala and the falsity of this allegation is apparent from the fact that even the delivery of the first child had taken place at Ambala while better medical facilities were available in Delhi. Counsel further submitted that the learned trial court has also given a wrong finding with regard to Ex. PW1/3 dated 14.8.90, as the said document was neither signed by the appellant nor by her parents. PW 3 Mr. B.L Chawla has also deposed in his evidence that the said document was not signed by the appellant. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Hon’ble Supreme Court in the case of Neelam Kumar Vs. Dayarani JT 2010 (6) SC 441.

5. Refuting the arguments of counsel for the appellant, Mr. Chawla counsel for the respondent submitted that the appellant in her cross examination as RW—1 has duly admitted not only her own signatures but the signatures of her mother and brother on Ex. PW1/1 and same is the position so far her affidavit Ex. PW1/2 is concerned. The contention of the counsel was that appellant is a well educated lady holding M.Com degree and therefore she had signed the said document after having fully gone through the contents of the same and it was never the case of the appellant that she had signed the said document to save her marriage.

6. Counsel further submitted that differences between the parties had arisen right at the beginning of their married life and the appellant had left the matrimonial house on 5.6.90. The contention of the counsel was that the said agreement dated 14.6.90 was signed by the appellant after fully realizing her faults and the respondent wanted to ensure that she would not repeat any such acts again. Counsel thus submitted that a detailed affidavit was signed by the appellant which was duly witnessed by the parents of the appellant and father of the respondent and other witnesses. Counsel further submitted that the appellant in her crossexamination also admitted the fact that she was not happy during her stay at Shimla. Counsel also submitted that the appellant did not cross-examine PW—2, Smt. Nirmala Tiwari on her deposition with regard to the attempts made by the appellant to commit suicide, first time by making an attempt to insert her finger in the socket and second time by threatening to come under the DTC bus. PW—2 further confirmed the visit of Mr. Kaushal Malik on 9.5.90 and she was not cross-examined by the appellant so as to refute the visit of Mr. Kaushal Malik on that day.

7. Counsel for the respondent further argued that the respondent had duly proved on record the incident which had taken place on 05.06.1990 when the respondent was humiliated by the father of the appellant in the presence of the local people. Drawing attention of this Court to the crossexamination of PW-1, counsel submitted that the visit of the appellant’s parents to the matrimonial house at Multan Nagar on 05.06.1990 has been duly admitted by the appellant herself, as suggestion was given by the appellant to the respondent confirming the visit of the appellant’s parents on the said date. Counsel also stated that Ex.PW-1/1 and Ex.PW- 1/2 were executed by the appellant keeping in view the entire background of the facts of the preceding dates. Counsel also stated that the visit of Mr. Kaushal Kumar Malik has been duly admitted by the appellant herself, although she has taken a stand that he was invited for tea and there was no provision in the house to offer lunch to him. Counsel also stated that visit of Mr.Kaushal Kumar Malik has also been confirmed by PW-2 Smt.Nirmala Tiwari in her evidence. In support of his arguments, counsel for the respondent placed reliance on the following judgments:

8. I have heard learned counsel for the parties at considerable length and gone through the records.

9. The respondent had filed a petition under Section 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955 and vide judgment and decree dated 03.06.2003, the learned trial court allowed the petition of the respondent on the ground of cruelty under Section 13 (1) (ia) of the said Act, while on the ground of desertion, the petition was dismissed. Feeling aggrieved with the said judgment and decree, the appellantwife has preferred the present appeal, while a cross-appeal was also filed by the respondent challenging the finding of the learned trial court dismissing the petition of the respondent under Section 13 (1) (ib) of the said Act on the ground of desertion.

10. During the course of arguments, learned counsel for the respondent did not press the cross-appeal filed by the respondent and, therefore, arguments were heard by this Court confining to the challenge made by the appellant to the said judgment and decree dated 03.06.2003.

11. The prime incidents of cruelty mainly relied upon by the learned trial court in the impugned judgment and decree dated 03.06.2003 can be enumerated as under:-

(i) As per the respondent, the agreement and affidavit dated 14.6.90 duly proved on record by the respondent as Ex.PW-1/1 and Ex. PW-1/2 respectively, clearly reflect that there was a constant interference of the parents of the appellant in the matrimony as the appellant was under the constant influence of her parents and she used to leave the matrimonial house time and again at the instance of her parents.

(ii) The appellant made an attempt to commit suicide by inserting her finger in the socket in the first week of August, 1990 and once she also gave a threat to commit suicide by laying before the DTC bus.

(iii) The document Ex.PW-1/3 was proved on record by PW-3 Shri B.L.Chawla to prove the fact that the appellant had left the company of the respondent at the instance of her parents. By this document also, the respondent proved the continuous interference of the parents of the appellant in their matrimonial life.

(iv) Humiliation of the respondent when a colleague of the respondent Mr.Kaushal Malik was not served with lunch on 09.05.1990, although he was invited for lunch and the appellant was sent back home from her office to prepare lunch for them.

(v) On 5.6.90, both the parents of the appellant came to the matrimonial home at Multan Nagar and the father of the appellant was drunk and created a scene outside the house by alleging that the respondent had taken dowry in the marriage and that the appellant is not being given food.

(vi) Physical assault of the respondent by the father of the appellant at appellant’s parental house in the presence of the appellant after the celebration of their first marriage anniversary at Ambala on 13.4.91.

(vii) Manhandling of the respondent by the brother of the appellant on 03.07.1991, the incident which happened in the presence of the land lady Mrs.Nirmala Tiwari and a tenant Mrs.Jain.

12. The marriage between the parties was solemnized according to Hindu rites and ceremonies on 13.04.1990 and the relationship between the parties soured right from the very beginning. As per the respondent, their honeymoon trip was curtailed due to the intervention of the parents of the appellant. Execution of the agreement and the affidavit just within a period of about two months of the marriage no doubt is an unusual step, but the precise question which would arise is that under what circumstances the need arose for the parties to execute the agreement Ex.PW-1/1 and for the respondent to sign the affidavit Ex.PW-1/2.

13. Learned counsel for the appellant vehemently argued that the said affidavit and the agreement were signed by the appellant just with a view to save her marriage, as otherwise she would not have agreed to sign the said documents. Undoubtedly, both the parties are well educated and were employed in the same Bank and it cannot be easily believed that the appellant would have signed such a detailed agreement duly supported by her affidavit without there being any background of repeated visits of the appellant to her parental home and constant interference of the parents of the appellant in her matrimonial life. So far the averments of the agreement and affidavit highlighting the fact that there was no exchange of dowry articles and only a few articles were presented in the marriage and that the marriage was a simple affair , this Court does not find anything wrong in the same as due to stringent criminal provisions, the parents and the family members of the husband often become the easy targets and victims of humiliation and embarrassment visiting the Crime Against Women Cell, Police Stations and the Courts and sometimes to the extent of suffering imprisonment. It was probably to save such a situation, that the aforesaid assertions relating to dowry articles must have been inserted in the said agreement and affidavit. Through the said affidavit, the parents of the appellant also gave some sort of assurance to the respondent that they will not interfere in any manner whatsoever in the matrimonial lives of the parties. Such a written statement given by the parents of the appellant does give strength to the plea of the respondent that there was a constant interference from the side of the parents and family members of the appellant in their matrimonial life. The said agreement and the affidavit have not been disputed by the appellant. The agreement is also signed by the appellant, her parents as well as her brother and from the side of the respondent, the respondent himself, his father Mr. Kedar Nath Khanna, Mr O.P Tiwari and Mr. K.K Malik. The plea taken by the appellant that the said affidavit and the agreement were signed by her under threat is not at all convincing as the said affidavit and the agreement were not only signed by the appellant herself but by her parents and brother as well. The appellant has also taken a plea in her written statement that the respondent had procured her signatures on blank papers and blank stamp papers and even she had signed the suicide note with a view to save her marriage, but no weightage can be given to such unsubstantiated pleas as the appellant has not produced her parents and her brother in the witness box to prove her defence that the said documents were executed by all of them under the alleged threat of the respondent. There is thus no reason to disbelieve the said documents duly proved on record as Ex.PW-1/1 and PW-1/2 which give a clear picture about the continuous interference of the parents in the matrimonial life of the appellant and her husband.

14. The second incident, on which reliance was placed by the learned trial court to grant decree of divorce on the ground of cruelty, was that the appellant had once attempted to commit suicide by inserting her finger in the socket and second time when she had given a threat to lay down before the DTC bus. This testimony of the respondent-husband was duly corroborated by PW-2 Smt.Nirmala Tiwari, the land lady of the house, who is an independent witness. The learned trial court has rightly given due credence to the testimony of PW-2 Smt.Nirmala Tiwari, who in her cross-examination, deposed that in her presence the appellant gave a threat of committing suicide by coming in front of DTC bus. PW-2 also supported the testimony of the respondent-husband with regard to the attempt made by the appellant in the year 1990 to commit suicide by putting her finger in the socket. The argument of counsel for the appellant that the width of the socket was too narrow for the insertion of the finger lacks force as it is not the case of the respondent that literally she had put her finger inside the socket and had it been so then certainly the appellant would have received an electric shock, which is not the case of the respondent in the divorce petition.

15. Considering the next incident with regard to the document Ex. PW 1/3, the argument of counsel for the appellant was that Ex.PW-1/3 dated 14.08.1990 was neither signed by the appellant nor by her parents and, therefore, no weightage could have been given by the learned trial court to such a document. This argument of learned counsel for the appellant is devoid of any force as Mr.B.L.Chawla entered the witness box and proved the said document as Ex.PW-1/3. The appellant has not disputed the fact that she left the matrimonial house on 14.08.1990 when the said writing was executed by Mr.B.L.Chawla. Simply because the said document was not signed by the appellant and her parents would not imply that no meeting was arranged of the people of the locality on 14.08.1990 or that the appellant did not take the decision to leave the matrimonial home on 14.08.90.

16. Coming to the next incident of 9.5.1990 when a friend of the respondent husband was invited for lunch at their house, the argument of the counsel for the appellant was that the respondent did not suffer any humiliation, as the respondent could not have invited his friend for lunch on a working day. The contention of counsel for the appellant was that the name of Mr.Kaushal Kumar Malik was duly enlisted in the list of witnesses of the respondent, but still he was not produced in the witness box to depose and therefore the learned trial court should have drawn an adverse inference against the respondent. This argument of counsel for the appellant is also devoid of any merit. No doubt Mr. Kaushal Kumar Malik would have been the best witness to prove the alleged humiliation inflicted by the appellant on the respondent on that day when he was invited for lunch, but considering the fact that PW2 Smt. Nirmala Tiwari, who is the landlady of the respondent and is residing in the same very property in her deposition confirmed the visit of the said friend Mr. Kaushal Kumar Malik on 9.5.1990 and also the fact that the appellant in her deposition also admitted the visit of Mr. Malik on the same day, therefore, withholding of the said evidence of Mr. Kaushal Kumar Malik will not prove fatal to the case of the respondent. The appellant in her examinationin- chief has admitted the fact that she had served the said friend with tea and biscuits and on that the respondent started quarrelling with her in the presence of the said friend on the ground that she had not prepared food for him. The explanation given by the appellant for not preparing the food in her examination-in-chief is that there was no provision in the house and secondly because it was not the time for dinner. This explanation given by the appellant cannot hold any water. To say that there was no provision in the house for preparing lunch and the time when the said friend of the respondent visited the house was not suitable for dinner, cannot be accepted as once the husband and wife are both earning and are residing together the kitchen of the house is expected to be properly equipped with necessary grocery and eatable items. So far question of timing for lunch is concerned, the same can always vary and lunch at 4 p.m in metropolitan cities like Delhi is not that unusual.

17. So far the incident of 05.06.1990 when the respondent was alleged to have been humiliated by the father of the appellant in the presence of the local people is concerned; it was proved on record by the respondent that the parents of the appellant had visited the matrimonial house at Multan Nagar on 05.06.1990. The affidavit and the agreement which were executed by the appellant and her parents on 14.06.1990 also clearly suggest that the said incident of 05.06.1990 was a pre-cursor to the execution of the said documents. The testimony of the respondent about the said incident of 05.06.1990 remained unrebutted as nothing contrary to the same could be elicited by the appellant from the respondent during his cross-examination.

19. Without going into the other allegations of cruelty leveled by the respondent and the minor contradictions in the cross-examination of the evidence of the respondent and the two witnesses adduced by him, there is no room to disbelieve the case of the respondent duly proved by him with the help of the said two witnesses PW 2 and PW3. I also do not find any infirmity in the finding of the learned Trial Court taking a view that the agreement and the affidavit proved on record by the respondent as Exhibit PW 1/1, PW 1/2 explicitly show that there was a regular interference from the side of the parents of the appellant and she used to leave the matrimonial home at their provocation and instigation and due to that there arose a need to execute the said documents.

20. Now the question that arises before the court is that whether the above said acts proved by the respondent amount to ?cruelty? as envisaged under section 13(1) (ia) of the Hindu Marriage Act, 1955 for dissolution of marriage. Cruelty has not been defined in the Act and rightly so as it is not possible to put this concept in a strait jacket formula. Cruelty can be physical or mental, intentional or unintentional. The present is a case of mental cruelty where the respondent husband has alleged that the behaviour of the appellant caused him mental pain, suffering and humiliation. But it cannot be lost sight of the fact that the normal wear and tear of married life cannot be stretched too far to be regarded as cruelty for the purposes of this section. The conduct complained of should be grave and weighty so as to satisfy the conscience of the court that the relationship between the parties has deteriorated to such an extent that it cannot be reasonably expected by them to live together without mental pain, agony and distress. The Hon’ble Apex Court in the case of Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 after analyzing all the case laws of India and other countries gave a non exhaustive list of acts that may amount to mental cruelty. It was held that:

“72. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of ‘mental cruelty’ within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. ……

74. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

21. Cruelty thus depends on case to case basis and what may be cruelty in one case may not be cruelty in the other. Sometimes a taunt or an insult may be more painful than a physical assault. The factors that may be considered are the social status of the parties, the economic background, education and upbringing, for coming to the conclusion whether the conduct complained of would touch the pitch of severity which would make it impossible for the parties to live with each other. The incidents alleged in the present case are of a nature where apart from the actual physical assault by the brother and father of the appellant on different occasions, evidently the appellant has herself not fulfilled her marital obligations. The parties got married on 13.4.90, and on the honeymoon itself there arose differences between them. The appellant left the house for the first time within two months of her marriage which is highly unusual for a newly married lady unless something catastrophic takes place. The petition for divorce was filed by the respondent on 15.1.92, just within a period of almost two years from the date of the marriage demonstrating that the desiderata of matrimony, understanding and tolerance were abysmally amiss between the parties. It was also proved on record by the respondent that the appellant had threatened to commit suicide on two occasions. It was held by the Apex Court in the case of N.G Dastane vs S.Dastane AIR 1975 SC 1534 that the threat by the spouse to put an end to her own life would amount to cruelty. It was further reiterated by this court in the case of Smt.Savitri Balchandani vs. Mulchand Balchandani AIR 1987 Delhi 52 and now recently by the Bombay High Court in 2009 in the case of Mrs. Sanjivani Vs. Mr. Bharat that the threat by the wife to commit suicide would come in the ambit of mental cruelty. The threat of ending her life by the wife and constant bickering to the extent that the husband has to invariably make sure that she does not take an extreme step to commit suicide would undoubtedly create a hostile atmosphere where the wife would treat the husband as her enemy and would certainly cause great stress to the husband. Hence, the persistent piquing conduct of the appellant in the present case is antithetic to the natural love, affection, trust and conjugal kindness and has caused to the respondent mental pain, agony and suffering which amounts to mental cruelty as envisaged under section 13(1) (ia) of the Act.

22. It is often found that the malaise of the interference of parents in the married life of their daughters has become a major cause playing havoc with the matrimonial lives of young couples. All the parents guide, teach and discipline their daughters and are concerned about her welfare after marriage but it is imperative for the parents to draw a line as the prime concern should be that their daughter is happily settled in a new atmosphere at the husband’s place but not with day–to-day monitoring of the affairs taking place at the matrimonial home of the daughter. Parents should not become uninvited judges of the problems of their daughter, becoming an obstacle in the daughter’s married life, to plant thoughts in her mind and gain control over her and promoting disharmony in her family life. They are expected to advise, support and believe in their upbringing maintaining a discreet silence about the affairs of the matrimonial relationship. The present case is an unfortunate example where the parents of the appellant, instead of putting out the fire have fuelled and fanned it, resulting in the disruption of the sacred bond of marriage.

23. Based on the above discussion, this Court does not find any illegality or infirmity in the impugned judgment and decree passed by the learned Trial Court. The judgment of the Apex Court relied upon by the learned counsel for the appellant in the case of Neelam Kumar (supra) will be of no help to the case of the appellant as the ground of irretrievable break down of marriage has not been taken into consideration to uphold the order of the learned Trial Court.

24. In the light of the foregoing, there is no merit in the present appeal and the same is hereby dismissed.